Our state constitution actually
provides more rights than the U.S. Constitution, a new book shows

By David Volk

IN WHAT SEEMED LIKE A PLOT from a Bruce Willis action movie, a major city had been shut down and its residents confined to their homes as police conducted a door-to-door search for men believed to have set off two bombs, killing three and injuring hundreds. The nation stayed glued to its radios, TVs and computers waiting for the latest developments in a major manhunt.

Robert Utter, ’54, was among those tuned in and eagerly awaiting developments in the search for the men believed to be involved in the Boston Marathon bombing. Although he wasn’t necessarily listening for any possible violations of the constitution, the retired judge was keen to any legal implications.

“The law has always developed out of controversy,” he says.

If anyone would know, it would be Utter. Not only is he the co-author of a new book on the Washington state constitution and a retired professor who specialized in teaching the subject at the University of Puget Sound School of Law, but he also sat on the Washington State Supreme Court, where he wrote decisions interpreting the constitution from 1971 to 1995, including two years as chief justice.

The book, which he co-wrote with UW Law Professor Hugh Spitzer, is part of a series called The Oxford Commentaries on the State Constitutions of the United States. Just the name of the series and the title The Washington State Constitution may make it sound like a fast ticket to a good night’s sleep, but if you nod off you’ll miss learning how the document gives more rights to Washingtonians than the U.S. Constitution provides most other Americans.

As an example, Spitzer pointed to what would happen if a police officer came to your door and asked to be allowed into your house for a chat. While many people might feel intimidated enough to say yes out of misplaced fear they could be arrested for refusing, Washingtonians are afforded an additional safeguard.
“Under the Washington state constitution, a police officer can say, ‘Can I come in? I’d like to talk to you about x, [but must add] by the way, you don’t have to let me in.’ That’s huge in law enforcement,” Spitzer said.

The requirement, which is part of Article I, Section 7, is one of the many major differences between state and federal constitutions, Utter and Spitzer say. The article says “no person shall be disturbed in his private affairs or his home invaded without authority of law.”

While that may sound like the right to privacy guaranteed under the U.S. Constitution, it goes even further, says King County Prosecuting Attorney Dan Satterberg, ’82.

“What it’s led to is the requirement for more and more search warrants that police have to seek in the middle of the night in the middle of an investigation. There are an awful lot of judges who are getting [warrant] calls in the middle of the night,” he explains. “It has come to a point where they’re going to need a warrant to do just about anything. That has practical implications.”

Other differences include restrictions on the rights of corporations, stronger protections for religious liberty and prohibitions against spending public money on religion, Spitzer says. In addition to providing a section-by-section analysis of the document, the book provides additional context by giving a glimpse into the history that led to each provision.

“It’s a fascinating exploration of what was going on in statehood, what the founding fathers and mothers thought, not just nationally, but what was important to the state of Washington,” Utter says. As an example, Utter and Spitzer point to restrictions on the rights of corporations that date to the state’s populist roots.

“People in the 1880s were anti-corporate. They were suspicious of corporations and banks, railroads in particular,” Spitzer says. As a result, the document included provisions requiring shareholders to make good on a bank’s debts when a financial institution folds and a requirement that telegraph companies share their transmission lines with competitors.

The state charter may cover what Utter calls “just about everything in people’s lives,” but its influence in court decisions was eclipsed from the 1940s through the 1980s as more people focused on decisions by the U.S. Supreme Court. The federal court was such an activist court and relied so heavily on the Commerce Clause to decide civil rights and other cases that most lawyers often overlooked state constitutions as a source for rights.

“There was professional amnesia because,” Spitzer says, “this is the era of fighting Nazis, fighting Communism and fighting the Cold War, and everybody’s attention was on the federal government.”

Utter helped restore the state constitution’s influence by becoming one of the first law school professors in Washington to focus his teaching on the document and also through the opinions he wrote while on the state Supreme Court, Spitzer adds. So, it was only natural that Oxford approached Utter to write the first edition of the book. Although he was given five years to finish the project and had his students each take a chapter of the Constitution and write about it, he soon realized time was running out and he needed help organizing the book. As it happens, Spitzer, who had unsuccessfully run for a spot on the state supreme court, was also considering working on a similar book. The two combined forces and wrote the first edition, which was published in 2002.

The new edition, which was published in April, marks their second collaboration. This time the publisher says the book has been expanded to include the role the state’s Populist movement had on the document as well as cases over the last 10 years that demonstrate the constitution’s growing influence on court decisions.

Although the book hasn’t been out long, Washington State Supreme Court Justice Debra Stephens has already given it the thumbs up because its approach is scholarly, but not overwhelming.

“Sometimes when you get into legal scholarship it’s like drinking from a fire hose. The value of the book is it’s a short, easily penetrable guide,” Stephens notes. “I think this is a book that everybody should have who’s practicing in Washington because it’s a point of entry into identifying areas in which lawyers and judges need to pay particular attention to the state constitution.”

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